Madras High Court
United India Insurance Co. Ltd vs Ayyamalai on 13 July, 2012
Author: P.Devadass
Bench: P.Devadass
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.07.2012
CORAM
THE HON'BLE MR.JUSTICE P.DEVADASS
C.M.A.No.16 of 2007
United India Insurance Co. Ltd.
Perambalur District. ... Appellant
Vs.
1.Ayyamalai
2.Ilayakkani
3.Duraisamy
4.R.Venkatachalam ... Respondents
PRAYER:- Appeal against the Judgment and decree dated 28.02.2006 passed by the Motor Accident Claims Tribunal [Sub-Court], Athur, in M.C.O.P.No.19 of 2000.
For Appellant : Mr.M.B.Gopalan
For Respondents 1 & 2 : Mr.R.Asaithambi
R3 & R4 - Exparte
J U D G M E N T
Disputing its liability, the Insurance Company directed this appeal.
2. The accident took place on 06.12.1999. The claimants, (Respondents 1 and 2 in this appeal) who are parents of the deceased in M.C.O.P.No.19 of 2000 are awarded a total compensation of Rs.2,42,800/-.
3. Learned counsel for the appellant contended that as the deceased travelled as a gratuitous passenger, in a goods carrying vehicle, namely, tractor, this case is not covered under the policy.
4. In support of the said contention, the learned counsel for the appellant also cited the following decisions:-
i) BRANCH MANAGER, UNITED INDIA INSURANCE CO. LTD. Vs. NAGAMMAL AND OTHERS [2009 ACJ 865];
ii) THE ORIENTAL INSURANCE CO. LTD. Vs. S.PALANISAMY AND OTHERS [C.M.A.Nos.2522 to 2533 of 2007, dated 30.08.2010] (Madras), (unreported); and
iii) THE NEW INDIA ASSURANCE CO. LTD., CUDDALORE Vs. SEENU AND OTHERS [C.M.A.Nos.1693 to 1698 of 2006, dated 06.09.2011] (Madras), (unreported).
5. The learned counsel for the appellant also contended that in the tractor, the driver and one person alone were permitted. However, at the time of accident, three persons have travelled in the tractor. The tractor is to be used for agricultural purpose. But, it has been used for a different purpose. There is violation of terms and conditions of the policy. So, the insurance company is not liable to pay compensation amount to the claimants.
6. On the other hand, the learned counsel for the claimants contended that the deceased travelled in the tractor as a loadman, as per the policy, along with the driver one person can travel, although, three persons have travelled, compensation is claimed for the deceased only, there is only one claim, the deceased went as a loading and unloading coolie in the tractor connected to a trailer, carrying materials for the construction of a house for the vehicle owner. There is no policy violation. Above all, at the time of accident, there is policy coverage for the tractor and the trailer with the appellant and the claimants are third parties.
7. In GIRIRAJ PRASAD AGRAWAL AND OTHERS Vs. PARWATI DEVI AND OTHERS [2005 ACJ 1626, (F.B.) Jharkand], explaining the object behind the Motor Vehicles Act, the Full Bench observed as under:-
"12. Section 146 of the Act (old Section 94) makes the insurance of vehicle mandatory against third party risk. The object of Section 146 is to ensure insurance of all vehicles which are to be used in public place so that if a third party suffers any damage due to use of the said vehicle in public place, he would be able to get damage for the same straightaway from the Insurance Company. The statutory compulsion is made with a view to give benefit to a large number of persons who lose their lives in automobile accidents or who are injured and disabled as a result of such accident. The owner of the vehicle would not be able to meet the claims of the victims of the accident. It is with the above object that the compulsory insurance is made under the Motor Vehicles Act. The Insurance Companies are nationalised with a view to see that they toe the line of the Directive Principles of State Policy under Article 39 of the Constitution of India and also fulfil the obligations under the Motor Vehicles Act."
8. The Motor Vehicles Act particularly the provisions relating to compensation for the victims of road accidents and the requirement of compulsory insurance coverage are meant for the benefit of the victims and the members of their family, therefore, such provisions are to be liberally construed [see DIVISIONAL MANAGER, ORIENTAL INSURANCE CO. LTD. Vs. JASODA MOHANTA [AIR 1996 Ori 120]].
9. On 06.12.1999, Saravanan, who was then 19 years old, travelled in the tractor belonging to 3rd respondent as his coolie. The trailer belonging to 4th respondent has been connected with the tractor. Both the tractor and the trailer were insured with the appellant. The evidence of P.W.2, Singaravel, disclosed that at the time of accident, Saravanan was sitting on the right side mudguard of the tractor and the tractor was driven by its driver, in a rash and negligent manner, Saravanan fell down and the tractor ran over him and he died on the spot. Murugan, who also travelled in the said tractor gave complaint as against the tractor driver (see Ex.A1 F.I.R.). After investigation, police filed the Final Report (see Ex.A5) against the tractor driver for an offence under Section 304-A IPC. There is no contra evidence. Thus, the accident was due to the rash and negligent driving of the tractor driver.
10. The evidence of P.W.2 is that in the said trailer they have carried the materials of the tractor owner and they went in the said goods vehicle as loadmen, as employees of the tractor owner. In Ex.A1 also it has been mentioned that they went in the tractor as coolies of the tractor owner. There is no contra evidence. Thus, the deceased went in that tractor as a coolie and not as a passenger or as a gratuitous passenger.
11. In the circumstances, NAGAMMAL [supra], wherein it was held that for the passengers or gratuitous passengers travelled in a goods vehicle, the Insurance company is not liable will not be applicable to this case.
12. In S.PALANISAMY (supra), the claimants travelled in a tempo van as unauthorised passengers and in SEENU (supra) several persons travelled unauthorisedly in an heavy goods vehicle, so, their claims were dismissed and the Insurance Company was absolved. Since in the case before us, the deceased travelled as a coolie/employee of the vehicle owner, these decisions will not be applicable to the facts of this case.
13. Ex.B2 is the policy for the tractor and Ex.B4 is the policy for the trailer. The appellant is the insurer. On the date of accident, there was insurance coverage for the vehicles.
14. In Ex.B2, the permit of the tractor, the seating capacity is driver plus one. From the evidence of P.W.2 and R.W.2, Duraisamy, the tractor owner, it comes to light that at the time of accident besides the deceased, Murugan and Singaravel have also travelled. So, it is more than the permitted seating capacity. It is not the contention or the evidence of the appellant that by their so travelling they have contributed to the accident. In fact, it cannot say so. Even as per Ex.B1, one driver and one person are permitted. Although, extra persons have travelled in the tractor, only one claim for the death of the deceased (others did not suffer any injury) has been made. Breach of terms of permission may be an offence by the insured, but, that will not be a ground for the insurer to avoid its liability under the contract of insurance [see GIRIRAJ PRASAD AGRAWAL (supra)].
15. As per Ex.B1 and Ex.B3 permits of the tractor and the trailer, they should be used for agricultural purpose. R.W.2 had obtained the trailer from its owner R.W.3, Venkatachalam, under an arrangement. At the time of accident, R.W.2 transported construction materials to his land in the trailer pulled by his tractor. The insured vehicles has been put to use for a purpose other than the purpose for which they have been permitted to be used. It is a violation of policy condition.
16. At the time of accident, there is insurance coverage for the offending vehicle. There is also coverage for employees of the vehicle owner. Out of the 3 persons, only one claim has been made with respect to the deceased. The claimants are third parties. They are parents of the deceased. They cannot be made to suffer for the sin of the vehicle owners. In the circumstances, the Insurance Company can be directed to pay the compensation amount to the claimants and recover it from the vehicle owners (see BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD., PUNE Vs. MANIMOZHI & OTHERS [2010 (2) TN MAC 542 (DB)]).
17. In the result, this Civil Miscellaneous Appeal is dismissed. However, the award of the Tribunal is upheld with modification. The appellant shall deposit the entire compensation amount within four weeks from the date of receipt of a copy of this Judgment, if not already deposited. Respondents 1 and 2 are permitted to withdraw the entire compensation amount together with accrued interest, less amount, if any, already withdrawn. The appellant is permitted to recover the said amount from respondents 3 and 4. For this purpose, the appellant need not file a separate suit. Based on the direction in this Judgment itself, the appellant can file Execution Petition before a Competent Court to recover the said amount. No costs.
13.07.2012
Index : Yes
Internet : Yes
smn
To
The Motor Accident Claims Tribunal,
[Sub-Court]
Athur,
Salem District.
P.DEVADASS, J.,
smn
Pre-delivery Judgment in
C.M.A.No.16 of 2007
13.07.2012